Mail and Guardian
Julius Malema is free to go, for now. On Tuesday, judge Billy Mothle struck Malema’s criminal case from the roll, but this does not mean that Malema is innocent.
On Monday, Malema’s co-accused, businessman Kagisho Dichabe, did not appear in court, apparently because he was ill.
This presented the court with a dilemma: to postpone the case again, which could potentially be prejudicial to Malema and his co-accused, or to separate Dichabe’s case from the case against the other two, and to proceed with the trial of Malema and co-accused Lesiba Gwangwa this week
But the state did not apply for a separation of the two cases, and the court has no power to order that the cases be separated without an application, said Mothle. He indicated that if he had such power, he “would have exercised it”.
Mothle explained that the case had been frequently postponed since 2013, and most of these postponements were requests from the state.
“The state’s actions have now caught up with us,” he said.
He decried the fact that the accused had the charges hanging over their heads for two years, and said any further postponements would be unfair to them.
The prosecution can however recharge Malema, Dichabe and Gwangwa. They have not pleaded to the case against them, and there has been no ruling on their guilt or innocence.
National Prosecuting Authority (NPA) spokesperson Luvuyo Mfaku told journalists outside court on Monday that the indictment against them contains four charges: money laundering, fraud, corruption and racketeering. There are 54 counts between the three accused.
The case against Malema
Malema has repeatedly claimed innocence, and has said that he did not “steal anything”. That is not quite the state’s case against him.
His role in what the state alleges was a tender-rigging scam, was that of the receiver of ill-gotten goods. These “goods”, worth more than R4-million, would eventually help him to purchase his farm, which the South African Revenue Service later confiscated.
The allegation is that payments which were the proceeds of corrupt or fraudulent activity made their way to Malema’s pocket. These “proceeds” were acquired through the alleged corrupt tendering activities of Malema’s business associates, Gwangwa and Dichabe. These men tendered for the contract which would eventually make them a lot of money – over R40-million in the end – which much of this finding its way into Malema’s hands, alleges the state.
And while he might not have had a direct hand in that fraudulent activity, the state alleges that Malema knew that the money came from dodgy dealings, or ought reasonably have known about it, and thus benefitted from corruption.
Constitutional law expert Pierre de Vos surmised what the state must prove, in a piece published on the Daily Maverick: “The state would have to show that at least some of the 16 payments made to the Ratanang Trust (payments which add up to just over R4.5-million) were the proceeds of unlawful activity and that Malema knew this or ought reasonably to have known this. If they can show that even one of these payments came from unlawful activities and that Malema ought reasonably to have known this, they would have secured a conviction.”
In 2011, the Mail & Guardian reported that Malema’s Ratangang Family Trust, which he founded, held shares in a company called On-Point Engineering. The department of Roads in Limpopo had, in 2009, established a programme management unit (PMU) to oversee, among other things, its road works responsibilities.
On-Point was awarded the contract to manage the unit on behalf of the department for three years. The contract was worth R52-million.
According to the initial draft charge sheet that the National Prosecuting Authority presented to court in 2013, On-Point was only registered in 2009, a month before it bid for the PMU contract. But in its bid submission, it said it had nine years’ experience.
On-Point also submitted a tax clearance certificate as part of the bid, but the certificate actually belonged to a shelf company.
The charge sheet says that there is a “clear business relationship” between Malema and Gwangwa, their companies and entities.
It also says that Malema’s Ratanang Trust owns 50% of a company called Guilder Investments, which in term owns 33.3% of On-Point Engineering, making Malema an indirect shareholder.
It also says that there is no evidence that On-Point had any experience in running PMUs, as it stated on its bid documentation.
Nevertheless, On-Point won the contract, and also entered into an agreement with the department to provide drawings and designs of the projects that it would later manage, at an additional R8-million.
On-Point then entered into “secret agreements” with various companies, which were to be service providers, who were supposed to provide engineering services for eight construction projects, alleges the state.
The charge sheet alleges that the payments received by these companies from these “secret agreements” were channelled through yet more companies, to pay for the farm which Malema’s trust was buying, for almost R4-million.
Malema previously told the M&G that he did not have anything to do with the day-to-day running of the Ratanang Trust, of which his son is apparently the only beneficiary.
“I do not know what happens at On Point,” he said. “I just queue when the dividends are due. And not me, the trust does that.”